Summary: The Council acknowledges there was a missed opportunity to explain the funding basis for the late Mr X’s care home placement and has waived the fees for the period when Mr X was deemed to be a short stay resident. That remedies any injustice arising from that complaint. There is no evidence of fault in the way the Council conducted the assessment of mental capacity.

The complaint

1. Mr A (as I shall call him) complains about the way the Council managed the care of his late brother Mr X while he was resident in a care home following hospital discharge. He complains the Council misled the family about care charges, mishandled a capacity assessment of his brother and failed to pursue Continuing Healthcare funding for him.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mr A and by the Council. I spoke to Mr A. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
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). In this case Mr A was unaware of the events which took place here until December 2023.

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What I found

Relevant law and guidance

6. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
7. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet. Only people released from hospital detention under section 3 will not have to pay for any aftercare they need as a result of the condition for which they were detained. This is known as section 117 aftercare.
8. 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.
9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

10. 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.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

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.

12. 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.
13. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
14. 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.
15. 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.
16. 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.
17. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). 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.

What happened – the care home placement and capacity assessment

18. In March 2021 Mr X was detained under section 2 of the Mental Health Act. At a multidisciplinary meeting on 22 April (attended by Mr X’s son Mr B), it was agreed Mr X needed a placement in a care home which could meet his mental health needs. The social worker confirmed a placement and said that Mr X would be a self-funder but the “placement would be funded by the local authority (client will have contribution) and this may change onto private placement depending on long term needs”. The notes add that Mr B said he was unsure how much money his father had over the threshold amount. Mr B understood from the meeting that the Council would fund his father’s placement.
19. The Council’s record show that a finance officer spoke to Mr B the day after the meeting. She explained that as Mr X had assets well over the threshold amount, he would fund his own placement. Mr B said he understood that as his father had been detained under a section of the Mental Health Act, his placement would be funded. The social worker said that as Mr X’s was a complex case the Council would fund it while it was short-stay but it would be self-funded if it became permanent.
20. No-one had power of attorney in respect of Mr X’s health or finances. It became clear that Mr X was unaware of how much money he had or how his bills were being paid. In October 2021 the social worker discussed with Mr X’s sons (Mr B and his brother Mr M) that it was important to know the extent of Mr X’s finances. Requests were made to Mr B, who had been managing his father’s money informally, for copies of bank statements but he did not provide them.
21. A safeguarding enquiry was opened in respect of possible financial abuse of Mr X, although Mr X strongly denied this was likely. Mr X expressed a wish to return to his home and the Court of Protection (acting for Mr X as no-one else had power to do so) asked for mental capacity assessments. A social worker and a safeguarding social worker visited Mr X at the care home to discuss his finances and to start a capacity assessment in respect of his ability to make his own decision about managing his money. During the visit Mr X said he would like to go to his bank himself.
22. The Council’s finance section sent Mr B an invoice for £14000 for his father’s care home fees. Mr B contacted the social worker and said he believed his father was still detained under a section and therefore not liable to pay his fees. She explained this was not the case. She arranged to meet Mr B and Mr M together the following week to discuss the finance issue. She spoke to a finance officer who said that the Council was paying for the placement but recouping the money from Mr X as he had assets over the threshold amount.
23. The Council’s records show that the social worker and another practitioner spoke together to Mr M about the assessment of his father’s capacity in respect of finance. The social worker explained “the plan is to support his dad to the bank so he is able to access his bank statements as part of the mental capacity assessment…. we have to take practicable steps”. The records show Mr B agreed to accompany his father to the bank as well. Mr A says this was because Mr B realised the social workers were planning to take his father anyway and he wanted to accompany him.
24. On 10 November the social workers attended the care home to take Mr X to the bank. Mr X was not wearing shoes when they arrived, and the senior carer told them Mr X had been admitted without shoes and none had been provided since. He wore slippers.
25. The records show that when they reached the bank (together with Mr B) Mr B started recording on his mobile phone. He told a bank clerk that his father was being detained in a care home against his will and the visit to the bank was part of an assessment. Mr X said he wanted to see his bank account details. He was unable to do so as he could not recall his PIN number or provide a signature and ID. The records show that on leaving the bank Mr X “was complaining he was cold and he wanted to get back to the care home. However, (Mr B) was insisting to take him to COSTA Coffee and later to (a shoe shop).” Mr A says his brother disliked national fast food and drink chains and would never have agreed to go to a Costa shop.
26. Mr M said the visit had been unnecessary. The social workers explained that Mr X had made numerous requests to them to visit the bank.
27. It was concluded that Mr X lacked capacity to manage his finances and would be unable to manage if he returned to his home.
28. Between April 2021 and January 2023 there were three checklists submitted for Continuing Healthcare funding, but Mr X was not deemed eligible. In April 2023 it was agreed it was in Mr X’s best interests to remain in the placement on a long-term basis.
29. In September 2023 a fast-track application for Continuing Healthcare was approved due to a decline in Mr X’s health. Mr X died in December 2023.

The complaint

30. In February 2024 Mr A, as executor of his brother’s will, complained to the Council. He complained about the charges applied to Mr X’s placement despite the Mental Health Act section, the capacity assessments which had involved him being taken to a bank and shoe-shop, and the lack of Continuing Healthcare funding until shortly before his death.
31. A deputy team manager investigated the complaint and responded. She said Mr X was not entitled to section 117 aftercare because he was not detained under section 3. She said in respect of the funding arrangements, she considered the family had been misinformed. She said the minutes of the April 2021 meeting suggested the Council would fund the placement because of its complexity, whereas in fact the social worker should have said the placement would be arranged and monitored by the Council, but Mr X’s finances would be assessed and charges applied accordingly.
32. In respect of the visit to the bank, the deputy team manager explained the situation which had arisen where Mr X requested to go to the bank and the social worker agreed to facilitate this as part of the assessment in line with the requirement to use ‘all practicable steps” to help Mr X to make a decision. She confirmed that Mr X’s representative and the Council’s solicitor were consulted about the plan.
33. Finally, the deputy team manager detailed the checklists which had been undertaken in terms of Mr X’s Continuing Healthcare funding eligibility.
34. The deputy team manager concluded that although procedures had been followed, there had been missed opportunities to explain the matter properly to Mr X’s family. She said as a goodwill gesture she would revise the invoice for the outstanding fees for the short-stay placement (23 April 2021 to 28 March 2023).
35. Mr A complained again. He said Mr B had not agreed the visit to the bank or the shoe-shop which he felt had had humiliated Mr X. He questioned the procedures which had been followed in the capacity assessment and whether the proper consultation had been undertaken. He also questioned why Mr X had not been eligible for Continuing Healthcare funding in January 2023.
36. The deputy team manager responded again. She said the Council’s records showed that Mr X had requested to visit the bank and Mr B had agreed to accompany them. She said the visit to the shoe-shop was not one planned by the social workers, but arranged by Mr B. She confirmed that all the appropriate consultations had been made about the capacity assessment. Finally, she said any appeal against the January 2023 Continuing Healthcare funding decision was a matter for the NHS and not the Council.
37. Mr A complained to the Ombudsman. He maintains that it was obvious that his brother had lost capacity to make his decisions and it was humiliating to take him to the bank and the shoe-shop as part of that process. He says it was not Mr B’s choice to take Mr X to the shoe-shop but the social workers who instigated it. He says Mr B (as Mr X’s representative) strongly objected to the bank visit but was ignored.
38. The Council has confirmed it has waived the fees for the short-term placement.

Analysis

39. Mr X was not detained under section 3 of the Mental Health Act and therefore not eligible for section 117 aftercare funding. There is no evidence of fault on the part of the Council.
40. Although there was no fault in the assessment of Mr X as liable to pay the full costs of his care, there was some confusion about the way this was explained to his family. The Council has waived the fees for the short-term placement however and there is no consequent outstanding injustice.
41. There is no evidence of fault in the way the capacity assessments were conducted. It was Mr X’s recorded wish to visit the bank to see his accounts and in the circumstances of the safeguarding and capacity assessments, there is no evidence that it was fault on the part of the Council to facilitate that. The Mental Capacity Act Code of Practice says that a person should not be treated as unable to make a decision “before all practicable steps to help the person to do so have been taken without success”. The social workers noted this was another reason for the bank visit as well as to facilitate Mr X’s wish. The Council’s records indicate it was not the social worker’s decision to take him to the shoe-shop.
42. As was explained to Mr A, the matter of the Continuing Healthcare funding eligibility is one for the NHS and not for the Council.

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Final decision

43. I have completed this investigation on the basis that any outstanding injustice caused by poor communication has already been remedied by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman