Summary: We will not investigate Mr X’s complaint the Council did not tell the family about the cost of his father, Mr Y’s respite care because there is insufficient evidence of fault to justify our involvement.

The complaint

1. Mr X complained the family were not told his father, Mr Y, would need to pay £174 per week towards the cost of his respite care in late 2023. He said a social worker spoke to Mr Y when Mr Y was in hospital, but Mr X does not believe Mr Y had capacity to make decisions at that time. Mr X also complained about the Council’s delay in responding to his complaint.
2. Mr X said the Council’s actions caused him and his wife avoidable stress at an already difficult time and that they cannot afford the £1382 the Council is now demanding for Mr Y’s care.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

What happened

6. Mr Y was admitted to hospital in October 2023 after a fall at home. A social worker carried out an assessment. They noted he was hard of hearing and their record says they wrote down information so Mr Y could read it. They recorded that Mr Y had capacity to make decisions and that there was no-one with a Lasting Power of Attorney who could deal with Mr Y’s finances on his behalf. Council records show Mr Y did not want to return home and it was agreed the Council would arrange eight weeks’ respite care in a care home. The records states Mr Y was told there would be a flat rate of £172.80 per week and Mr Y later signed a Council form confirming his agreement to pay that amount.
7. Mr Y had to pay rent and housing-related costs whilst he was in respite care. Council records show it explained to Mr and Mrs X that Mr Y needed to do this because he may wish to return home at the end of the respite period.
8. Council records show Mr X reported Mr Y’s condition had deteriorated during his first hospital stay and during the time he was living in the care home. Mr Y stayed in the care home for six weeks before returning to hospital where he died.

My assessment

9. The law says a person is presumed to have capacity to make decisions unless it is established that they lack capacity. Capacity is considered in relation to a specific decision at a specific time. Council records show it considered whether Mr Y had capacity during his first hospital stay and decided he did at that point. It adjusted the way it communicated with him in response to his hearing difficulties.
10. Since Mr Y had capacity and there was no other person with the legal right to manage Mr Y’s finances, it was appropriate for the Council to discuss the cost of the care with Mr Y. Council records show it told Mr Y the amount he would need to pay for his care, and he later signed a form to confirm he agreed to this.
11. We will not investigate further because there is insufficient evidence of fault to justify our involvement.
12. We do not investigate a council’s complaints handling unless we are also investigating the underlying complaint.

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Final decision

13. We will not investigate Mr X’s complaint because there is insufficient evidence of fault to justify our involvement.

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Investigator's decision on behalf of the Ombudsman