Summary: Mr D complained the Council delayed completing a financial assessment for his mother. He also complained the Council delayed reviewing his stepfather’s care and support needs. We find the Council was at fault for its delays in completing the financial assessment and its delays in reviewing Mr D’s stepfather’s care and support needs. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained the Council delayed completing a financial assessment for his mother, Ms E. He also complained the Council delayed reviewing his stepfather’s, Mr F, care and support needs.
2. Mr D says the Council’s failures have caused distress and upset. He adds the failures of the two Council departments to work together means there is a large debt of unpaid care fees for Ms E.

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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 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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 considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
8. Mr D 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

Care Act Assessment, care and support plans and reviews

9. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Charing for temporary residential care

11. 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.
12. 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.

Charging for permanent residential care

13. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
14. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. 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 the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
15. The value of a service user’s former home can be disregarded from the financial assessment if their partner remains living there after the service user has moved to residential care. There is also a 12-week disregard from the day a person first becomes a permanent care home resident.

Mental capacity

16. The Mental Capacity Act (MCA) 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The MCA (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.

Lasting Power of Attorney (LPA)

17. This is a legal document that lets a person appoint one or more people to help make decisions on their behalf if they have lost mental capacity. There are two types of LPA: ‘health and welfare’ and ‘property and financial affairs’.

Best interest decision making

18. A key principle of the MCA 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 MCA provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

What happened

19. This chronology provides an overview of key events in this case and does not detail everything that happened.
20. Ms E and Mr F have care and support needs. They were receiving care at home until March 2022. Ms E owns the house. Mr F lived there with Ms E.
21. The care agency told the Council it could no longer meet Ms E’s and Mr F’s needs. The Council visited Ms E and Mr F in February 2022 to assess whether they should stay at home, or whether residential care was required. It completed a MCA assessment. It decided they both did not have the mental capacity to make decisions about their care and support needs. Mr D has LPA for Ms E, and so he makes decisions about her care and support needs. He did not have LPA for Mr F at the time, and so the Council made a decision for him in his best interests. It decided he should receive care in a respite placement within a residential care setting with Ms E. Mr D said he wanted to try and find an alternative care agency to provide care at home for Ms E and Mr F.
22. Mr D could not find an alternative care agency for Ms E and Mr F. Therefore, they moved to a respite placement in a care home in March 2022. The Council funded Mr F’s placement. Ms E paid for her own care fees because she had over the upper capital limit.
23. The Office of the Public Guardian (OPG) appointed Mr D as Mr F’s LPA for health and welfare in late March. It appointed him as LPA for Mr F’s property and financial affairs in late August.
24. Mr D contacted the Council at the beginning of September and said he wanted Ms E and Mr F to return home. He phoned the Council a few weeks later and said Ms E was below the financial threshold and she was still having to self-fund her care. He completed a financial assessment form.
25. The Council agreed to allocate a social worker to assess the level of care Ms E and Mr F would need if they returned home.
26. The Council spoke to Mr D in November. He said Ms E and Mr F had spent 36 weeks in respite which was the initial agreement. He said he was unhappy with the care home and the care it was providing. The Council said the case was still awaiting allocation to a social worker and it could not give a time limit.
27. Mr D phoned the Council in January 2023 and said he was receiving invoices and final reminder letters for Ms E’s unpaid care fees. He said he was still waiting for the Council to review his financial assessment form. He chased the Council again for an update in March. An officer sent an internal email to the Council’s financial department asking for someone to contact Mr D.
28. The Council visited Mr F in July to review his care and support needs. Mr D attended the review. Mr D said the care home was not the right environment for Mr F and he wanted to explore assisted living.
29. Mr D complained to the Council in early August. He said the Council had failed to complete Ms E’s financial assessment despite his chasers.
30. Mr D provided the Council with an update in mid-August. He said he had visited an assisted living placement, but it was not suitable for Mr F. The Council also made enquiries with an assisted living placement. It responded and said it could not meet Mr F’s needs and residential care would be suitable for him.
31. The Council responded to Mr D’s complaint in early September. It said it received his financial assessment form on 4 October 2022. It said it usually tries to complete the forms within 28 days. It apologised it failed to do so. It said it could not calculate whether Ms E’s capital had fallen below the upper capital limit until it had some more information about the equity release. An equity release allows a person to release money from their property without having to make monthly payments. It said it had escalated the mater to a senior officer to review as a matter of urgency.
32. The Council completed the financial assessment on 22 September. It said Ms E was not eligible to receive a contribution towards her care fees because she had a property worth more than £23,250.
33. Mr D sent a letter to the Council. He said Ms E and Mr F went into temporary respite care because the Council could not provide the home care they required. He added the Council failed to provide a social worker and Ms E and Mr F did not have any support to return home.
34. Mr D phoned the Council in October. He said he wanted Mr F to return home, but it had failed to listen to his wishes.
35. The Council complete a MCA assessment for Mr F at end of November. It decided he did not have the capacity to make decisions about his care and support needs. Its view was a 24-hour supportive environment would ensure Mr F’s health and wellbeing needs were met.
36. The Council emailed Mr D in early December and said a home care package would not meet Mr F’s needs. It said there were concerns about him wandering and being confused during the night, which would endanger his safety and the security of his home. It said it might be in Mr F’s best interests to move to an alternative residential placement.
37. Mr D emailed the Council in early January 2024. He said he wanted Ms E and Mr F to move to a new care home because of an incident that had taken place with another resident. He also sent an email to the Council’s complaints department and said the situation regarding Ms E’s finances was not resolved.
38. The care home sent Mr D a notice to quit because of Ms E’s unpaid care fees.
39. The Council reviewed Ms E’s financial case in mid-February. Managers noted an officer did not complete the assessment of Mr F’s and support needs until 14 August 2023. It decided it would ignore the value of Ms E’s house until this date, and then it would apply a 12-week property disregard.
40. The Council found an alternative care home for Ms E and Mr F which Mr D was happy with. They moved to the new care home in March.
41. The Council issued a further response to Mr D’s complaint in March. It said while there was a review of Ms E’s needs, there was limited evidence it had reviewed Mr F’s needs since March 2022. The delays had resulted in a lack of clarity about Mr F returning home. This had an impact on Ms E’s financial situation, and consideration of whether her house should be disregarded for Mr F’s potential return. It also said it did not allocate a social worker until July 2023. It apologised for its failures and the distress caused. It said it would work with the care home to resolve the financial situation and the debt from January 2023 to March 2024.

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Analysis

42. The background events in this case start from early 2022, but Mr D did not refer his complaint to us until January 2024. Events before January 2023 would usually be caught by the restriction in paragraph four of this statement. I have decided to exercise discretion to look at earlier events because this was an ongoing matter affected by continual delays. Mr D did not let the matter rest and he repeatedly chased the Council for responses.
43. The Council was at fault as it delayed dealing with the financial assessment for Ms E. Mr D sent the form in September 2022. The Council did not respond until a year later. This is a significant delay and is fault. This fault caused Mr D frustration as he had to repeatedly chase the Council for updates. He had the added stress of receiving demands for unpaid care fees. He has also provided me with evidence the OPG has contacted him with concerns about how he is handling Ms E’s finances. This had caused him further distress and upset. This may have been avoided if the Council had not delayed dealing with Ms E’s financial assessment. The Council has confirmed it has put revised processes in place and it now completes most financial assessments within 15 days. I welcome this.
44. The Council also significantly delayed reviewing Mr F’s care and support needs. He went into a care home in March 2022 for respite. Respite care is time limited. Mr D contacted the Council in September 2022 and made it clear he wanted to discuss Mr F returning home. However, the Council did not start assessing his care and support needs until July 2023. Mr D advocates for Mr F and the Council’s faults mean he lost the opportunity to explore with the Council sooner whether a different care arrangement would have been more suitable for him and Ms E.
45. I welcome the Council has apologised to Mr D for his injustice caused by faults identified in paragraphs 43 and 44 of this statement. However, because of the length of time the matter went on for, I do not consider it is sufficient to remedy Mr D’s injustice. I have recommended a further remedy.
46. The Council’s delays in reviewing Mr F’s care and support also means Mr D has some uncertainty about whether Ms E’s financial situation would be different. The value of a service user’s former home can be disregarded from the financial assessment if their partner remains living there after the service user has moved to residential care. If the Council had reviewed Mr F sooner, he may have been able to return home and therefore the value of Ms E’s house would have been disregarded from her financial assessment.
47. The Council agreed in mid-February 2024 to ignore the value of Ms E’s house until 14 August 2023 (when it completed an assessment of Mr F’s care and support needs and decided he could not return home), and then it would apply a 12-week property disregard until November 2023. It also said in its response to Mr D’s complaint it would work with the care home to resolve the financial situation and the debt from January 2023 to March 2024. It has only very recently (1 August 2024) written to Mr D and confirmed it would disregard Ms E’s house from her financial assessment from July 2022 (when her capital fellow the upper capital limit) until November 2023. It apologised to Mr D for the delay in writing to him. It has calculated that Ms D would have needed to pay a contribution towards her care fees from July 2022. It has contacted the care home to arrange payments.
48. I welcome the Council has taken some steps to resolve this matter. However, it completed the MCA assessment on 30 November 2023 and concluded Mr F could not return home. It had not made any definitive decision about Mr F’s long-term care and support needs on 14 August 2023. Therefore, it will need to recalculate Ms E’s care contributions and write to Mr D to confirm this. It was also at fault for taking nearly six more months to write to Mr D with an update. This fault has caused him further distress and frustration which its needs to remedy.

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Agreed action

49. By 26 September 2024 the Council has agreed to:

• Write to Mr D to confirm Ms E’s care contributions (after disregarding the value of her property to February 2024).
• Pay Mr D £400 for his frustration, distress and uncertainty.
• Issue written reminders to relevant officers to ensure they act without undue delay when a service user or their relative asks for a review of a care and support plan.

50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. There was fault by the Council, which caused an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman