Summary: Mr X complains about the Council’s handling of his mother’s (Mrs Y) care and assessment since she was admitted to hospital in September 2022. The Council was at fault for the avoidable delay in assessing Mrs Y’s needs and contribution to care costs. It has already taken appropriate action to remedy the injustice caused by this delay. There was no evidence of fault in the Council’s interactions with Mr X about choice of residential care placement or the quality of care Mrs Y received.

The complaint

1. Mr X complains about the Council’s handling of his mother’s (Mrs Y) care and assessment since she was admitted to hospital in September 2022. Mr X says the Council failed to inform him his mother would be charged for her care while awaiting assessment, despite Mr X being his mother’s attorney. Mr X feels the Council has not provided appropriate support or guidance on his mother’s choice of residential care placement, despite him requesting this. Mr X also feels the Council did not properly investigate his concerns about the quality of care his mother received while she was a resident at Care Home B from October 2022 to April 2023.
2. Mr X’s mother has passed away since Mr X brought his complaint to us.

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The Ombudsman’s role and powers

3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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. When considering complaints 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.
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)

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How I considered this complaint

7. I have spoken to Mr X and considered the information he has provided in support of his complaint.
8. I have considered the information the Council has provided in response to my enquiries.
9. 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 guidance

Councils’ statutory duties

10. The Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 (Regulations) provide details of councils’ duties towards their residents with eligible social care needs and rules for charging for the services provided.
11. When exercising their social care functions councils must follow the Care and Support Statutory guidance (Statutory Guidance) issued by the Department of Health and Social Care, which is based on the Care Act 2014, unless they have very good reasons not to. They should also follow the Regulations.

Charging

12. When the Council arranges a care home placement, it has to follow charging rules set up in the Regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care. The rules state that people who have over the upper capital limit (£23,250) have to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
13. When making decisions on charging councils should be clear and transparent so people know what they will be charged. Where a council has decided to charge it should explain in the financial assessment how the assessment has been carried out, what the charge will be and how often it will be made. The council should ensure this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice. (Care and Support statutory guidance paragraph 8.2 & 8.16)

Fundamental standards

14. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of the fundamental standards and prosecute offences.
15. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall. This includes:

• providers must make sure that people who use their services have adequate nutrition and hydration to aid good health. People must be provided with appropriate food and drink and any support they may need to achieve adequate nutrition (regulation 14); and
• providers must securely maintain accurate, complete and detailed records about each person using their service (regulation 17).

Lasting Power of Attorney

16. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA 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' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
17. 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.

18. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

What happened

19. This timeline of key events does not cover everything that happened.
20. Mrs Y had mental health issues for a number of years. In early 2022, Mrs Y was admitted to hospital following a fall at home. The Council completed an initial assessment and Mrs Y received support from carers in her home following hospital discharge in February 2022. Mr X is Mrs Y’s son and has had lasting power of attorney (both types) for several years.
21. The Council involved Mr X in Mrs Y’s initial assessment and he assisted it and carers with accessing Mrs Y’s home to provide care. The Council advised Mr X that Mrs Y may have to pay a contribution to her care costs, depending on her income and savings.
22. In October 2022, Mrs Y was admitted to hospital again. A few weeks later, the NHS discharged Mrs Y to a placement in a residential care home, Care Home B, while she awaited further assessment. Mrs Y’s mental health had deteriorated and it was unclear she would manage if she returned home. Shortly after being moved to Care Home B, the Council advised Mr X and his sister that Mrs Y would need to pay a contribution to her care costs if she remained in residential care for more than six weeks.
23. At the end of October 2022, the Council had a further telephone discussion with Mr X about his mother’s care and needs. Council records state Mr X told the Council he did not believe his mother had sufficient savings to cover the costs of her care. The Council explained it would complete a financial assessment to establish the extent of contribution Mrs Y would be expected to make.
24. On 9 January 2023, the Council completed a full care act assessment for Mrs Y. It concluded it was unsafe for Mrs Y to return home and she would need to permanently move into residential care. The Council completed a financial assessment a few days later and issued an invoice to Mr X for Mrs Y’s care contributions from 8 November 2022 onwards.
25. Mr X complained to the Council about its delay in completing the care assessment for his mother. He said he would not have agreed to Mrs Y moving to Care Home B if he had known the Council’s assessment would be delayed and she would incur care charges. Mr X felt it was unfair of the Council to charge his mother for its delay in progressing the assessment.
26. Mr X selected a care home, Care Home C, from details the Council provided to him. The Council transferred Mrs Y to Care Home C on 6 April 2023, where she remained until she died.
27. On 1 May 2023, Mr X made a formal complaint to the Council about its handling of his mother’s assessments and the charges she had incurred. Mr X also raised concerns that he felt Care Home B had not properly monitored Mrs Y’s weight following a significant decrease prior to her hospital admission.
28. The Council responded to Mr X’s complaint on 26 June 2023. It apologised for the delay in completing assessments for Mrs Y until early January 2023. The Council said it would waive any charges Mrs Y had incurred from 8 November 2022 to 9 January 2023 in recognition of its avoidable delay. The Council also sought Care Home B’s comments in response to Mr X’s concerns about the monitoring of his mother’s weight. A manager for Care Home B explained it had monitored Mrs Y’s weight when she had been compliant with getting on the scales. The manager also confirmed that Care Home staff had continued to provide Mrs Y with supplement shakes to help minimise her weight loss and had maintained records of Mrs Y’s food and fluid intake throughout her stay.
29. Mr X brought his complaint to us shortly after this as he remained dissatisfied with the Council’s handling and response.

Analysis

30. In response to my enquiries, the Council has provided records of its contact with Mr X and his sister about their mother’s care. The Council has also provided copies of daily care records and other relevant records made by Care Home B while Mrs Y was a resident.
31. There are several instances within the Council’s and Care Home B’s records which describe the discussions the Council had with Mr X and his sister about Mrs Y being liable for a contribution to her care costs after six weeks. Records show the Council informed Mr X of this directly on 25 and 31 October 2022, in addition to its advice to Mr X’s sister by telephone on 26 October 2022.
32. It is unfortunate the Council’s complaint response on this issue appears to only include reference to contact with Mr X’s sister on 26 October. Despite this, I consider the evidence demonstrates the Council did notify Mr X that his mother would incur care charges after six weeks of being a resident at Care Home B. As such, there is no evidence of fault in this respect.
33. The Council has already accepted there was an avoidable delay in completing its assessment of Mrs Y. It has apologised to Mr X for this and waived the care charges Mrs Y incurred during the delay period. I am satisfied no further action is required as the Council has already taken the steps we would expect to resolve this issue and to remedy the injustice caused to Mrs Y and Mr X by its delay.
34. Mr X complains the Council did not provide him with enough advice and guidance on selecting an appropriate care home placement for Mrs Y. Mr X has told me he would not have agreed to Mrs Y’s discharge from hospital to Care Home B had he known at the time this would likely incur care charges. Mr X says he would instead have chosen for Mrs Y to remain in hospital.
35. It appears the decision to discharge Mrs Y from hospital was not one within the Council’s gift, but rather a decision made by the NHS to avoid detaining Mrs Y under the Mental Capacity Act also known as sectioning. Because of this I cannot make a finding of fault in respect of the Council on this matter.
36. The Council’s case records show it provided Mr X with information about the residential care placements on offer in its area and undertook an appropriate assessment to establish Care Home C was suitable for Mrs Y’s needs. Again, I see no evidence of fault in the Council’s handling of this element of Mrs Y’s case.
37. Mr X complained to the Council about Care Home B’s failure to properly monitor his mother’s weight. I have examined Care Home B’s records. An initial assessment of Mrs Y on admission to Care Home B includes instructions to seek advice from her General Practitioner (GP) if Mrs Y’s weight dropped significantly.
38. On admission to Care Home B, Mrs Y’s weight was recorded as 40.5 kilograms. Her significant weight loss was one of the factors that led to her admission to hospital. When Mrs Y was transferred to Care C in early April 2023, her weight was recorded as 40 kilograms. Care Home B’s records show staff were able to weigh Mrs Y on 18 occasions over the 23 weeks of her stay. Mrs Y’s weight was recorded as fluctuating slightly, by a kilogram over or under 40 kilograms, over the 23-week period. The Council also provided me with copies of food intake, fluid intake and loss recorded for Mrs Y by Care Home B staff throughout her stay.
39. Based on my examination of this information, Care Home B appears to have made accurate, complete and detailed records to properly monitor Mrs Y’s weight and overall nutrition/hydration during her stay. There is no evidence of fault in this respect although I do understand Mr X’s concerns given Mrs Y’s significant weight loss prior to hospital admission.

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Final decision

40. I have completed my investigation with a finding of fault causing injustice. I am satisfied the Council has already taken appropriate action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman