Summary: Mr X complained about the way the Council dealt with his father’s care charges. The Council was at fault for failing to keep proper records and give reasons for its decisions, delaying in sending financial assessment forms and deciding on Mr Y’s care contribution, failing to provide copies of Care Act assessments, sending incorrect invoices, and continuing to send invoices despite saying the account was on hold. This caused Mr X distress and uncertainty. The Council will apologise for this and provide an updated correct invoice.

The complaint

1. Mr X complains on behalf of his father, Mr Y, that the Council:
1. wrongly said that Mr Y had capacity to make financial decisions;
2. wrongly charged Mr Y’s estate for care fees, despite telling him that these would be paid for by the NHS as his needs were clinical;
3. incorrectly said it had scheduled an appointment with Mr Y’s family to discuss finances; and
4. wrongly sent his mother incorrect invoices and final reminders after Mr Y’s death.
2. Mr X says this did not allow him the opportunity to arrange alternative care for Mr Y, which he would have done if he had been aware of the charges. Mr X also says this has caused him and his family distress.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
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. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision. I also considered Mr X’s and the Council’s comments on previous draft decisions.

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What I found

Legislation and guidance

Assessment

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. Under the Care and Support Statutory Guidance councils should provide people with copies of their assessment and care and support plans.

Mental Capacity Act

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision and how to do this.

Mental capacity assessment (MCA)

11. 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.
12. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.

Lasting Power of Attorney

13. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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.
14. One of the types of LPA is for property and finance. This gives the attorney(s) the power to make decisions about the person's financial and property matters. 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.

Charging for permanent residential care

15. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014.
16. 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.
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’.
18. Individuals may need care and support provided by their local council and/or services arranged by ICSs. Councils and ICSs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner.

NHS-Funded Nursing Care

19. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses.

Local Government and Social Care Ombudsman Principles of good administrative practice

20. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes stating the criteria for decision making, giving reasons for decisions and keeping proper and appropriate records.

What happened?

21. Mr Y had been receiving care at home since 2017 and paid contributions towards this.
22. Mr Y was admitted to hospital mid-September 2023. The Council assessed that Mr Y’s needs could be met at home following discharge but could not identify a suitable care package. On 22 September, a council officer visited Mr Y on the hospital ward. They noted Mr Y was coherent and clear in his wishes about his discharge. The Council gave him discharge options and Mr Y asked for some time to consider these.
23. Following this visit, the council officer read Mr Y’s medical records which noted that Mr X told hospital staff that he had LPA and would not allow Mr Y to return home. The council officer discussed this with their manager, who noted the LPA would only be relevant if Mr Y lost capacity to make decisions. Because of Mr X’s comments, the Council recorded it would complete a mental capacity assessment with Mr Y.
24. A few days later, a social worker visited Mr Y and noted that he had full capacity to make decisions. She recorded Mr Y did not need a formal capacity assessment, but did not note the reason for this change in decision.
25. The same day, the Council telephoned Mr X to tell him this. Mr X disputed Mr Y’s capacity and said his father lacked insight into support he needed.
26. On 3 October, a social worker visited Mr Y. One of his daughters was also present. They agreed to a short term, interim stay at a care home while waiting for care at home.
27. The Council said it told Mr Y and his daughter that a contribution may be payable towards the cost of the stay at the care home, but this would be the same cost as having care at home. Mr X however says that nobody told anyone in his family that they may need to make a contribution. The Council recorded that Mr Y’s daughter told the social worker that Mr X and her sister shared LPA for Mr Y.
28. Mr Y moved to care home 1 on 5 October. The Council said it did not charge for the first six weeks of his care, but Mr X says he has received invoices for this period.
29. On 23 November, the Council completed a reassessment of Mr Y’s care needs. This found that Mr Y could not manage at home due to his increased needs. Following this, the Council decided to look for a long-term care home for Mr Y.
30. In mid-December, Mr X contacted the Council, unhappy that he had received an invoice for the contribution towards care costs. The Council said it would send Mr X a financial assessment form to complete for Mr Y.
31. The letter the Council sent with the financial assessment form to Mr X said this was to confirm eligibility for funding from the Council and to calculate any contributions that Mr Y may need to pay.
32. Mr Y was readmitted to hospital on 18 January 2024, but the Council continued to charge for his care.
33. On 31 January, the Council recommended 24-hour nursing care following discharge from hospital.
34. On 4 February, the Council completed an MCA and Care Act assessment with Mr Y. It decided that Mr Y did not have capacity to make decisions around his care.
35. Around the same time, Mr X sent a completed financial assessment form to the Council.
36. The next day, the NHS contacted the Council to say it agreed funded nursing care and asked it to send a CHC checklist within two weeks.
37. Mr Y was discharged from hospital to care home 2 on 8 February.
38. On 19 February, a social worker telephoned Mr X to say they would be completing a CHC checklist with Mr Y. They noted they explained the CHC process. Mr X said he was frustrated he had not been told any information about funding and was under the impression Mr Y’s care was fully funded.
39. On 21 February, the Council completed another Care Act reassessment and a CHC checklist. The Council says that Mr X, Mr Y and one of Mr X’s sisters were present.
40. Mr Y died on 26 February.
41. On 22 March, the Council sent a letter to Mr X. This letter said Mr Y would need to pay a contribution towards his stay at the two care homes.
42. The following week, the Council sent an invoice to Mr X. This was for Mr Y’s care at care home 1 and care home 2.
43. In early April, Mr X contacted the Council to say he was distressed to receive the letter and that it was incorrect. He said that somebody had told him Mr Y’s care was funded by the hospital and at no time was he told that he needed to contribute. Mr X also disputed the dates of the invoice, stating that Mr Y was in hospital for some of this time.
44. Council records from the same time showed the Council acknowledged it had overcharged Mr Y.
45. Mr X called the Council on 18 April to say he was unhappy about the charges. The Council agreed to put a two month hold on invoices while Mr X liaised with the social work team about the matter.
46. Shortly after this, the Council emailed Mr X apologising that it had sent a further invoice. It said it would stop sending invoices while it investigated Mr X’s concerns.
47. Following this, Mr X made a complaint to the Council with similar matters to this complaint.
48. The Council responded to Mr X’s complaint on 17 May. It said:

• a social worker visited Mr Y and one of his daughters on 3 October 2023 and discussed financial contributions. No concerns were raised that Mr Y could not decide about his care or financial affairs;
• in reference to a hospital paying for care, the Council said it was unclear what service Mr Y was referring to, but health partners offer different services depending on the level of care needed and eligibility for CHC. This would be a decision for the NHS or the ICS, not the Council. If Mr Y had a complaint about these services, he should approach them directly; and
• the Council did not uphold Mr X’s complaint.

49. Mr X disagreed with the Council’s response and sent a further complaint mid-May.
50. The Council responded to this on 6 June, saying:

• it received a transfer of care document from the hospital in September 2023, which evidenced Mr Y was medically fit for discharge. This also said that Mr Y had the mental capacity to make decisions about his care and support;
• if Mr X feels the transfer of care document was not a true reflection of Mr Y’s capacity at the time, or Mr Y should have been receiving health funding for this care, this would need to be investigated by the NHS and not the Council; and
• the Council discussed financial contributions with Mr X on 19 December 2023, 4 and 25 January 2024 in relation to the completion of relevant financial assessment forms.

Response to my enquiries

51. The Council said there is an outstanding charge from Mr Y’s stay at both care homes.
52. I asked the Council if it shared all Care Act assessments and support plans with Mr Y and his family. The Council said Mr Y had 10 assessments over a six-month period. It acknowledged that not all these assessments were shared because they quickly went out of date.
53. The Council said that since Mr X made this complaint, it had applied two waivers to the invoices for Mr Y’s care because it had previously sent incorrect invoices but there were still some outstanding care charges.

Analysis

Mr Y’s capacity to make financial decisions

54. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if it has not followed the right procedure, not considered relevant information, or not properly explained a decision it has made. If a council has made a decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong.
55. What that means in this case is that it is not for me to make my own judgement about whether Mr Y had capacity to make decisions about his finances. However, I can consider whether the Council properly made and recorded its decisions about this.
56. Although Mr X raised concerns about Mr Y’s capacity to make decisions, and the Council initially decided it should complete an MCA, it then changed its mind.
57. The Council was clear that a social worker visited Mr Y and decided that he did have capacity to make decisions about his care and support. While this is a decision the Council was entitled to make, it did not record the reasons why it made this decision. We expect councils to keep proper and appropriate records and give reasons for decisions. As Mr X was still disputing this, I would have expected the Council to have recorded the reason for its decision, but it did not do this and this is fault. However, it is unlikely this caused Mr X or Mr Y a significant injustice because they did not have access to these internal records.

Care fees and Mr Y’s needs

58. I have seen no evidence that anyone from the Council told Mr Y or Mr Y’s family that the hospital, or NHS would pay for all of Mr Y’s care.
59. It would not be for the Council to decide whether Mr Y’s needs were solely clinical and as such should be funded by health services. The Council promptly completed the CHC paperwork, the process which would determine any health funding.
60. So, there is no fault on this part of Mr X’s complaint. I cannot make a finding on if anyone within the NHS told the family this, as this is not within our remit.
61. Mr Y had already been receiving care before his hospital admission and had been paying towards it. The Council also told his daughter about possible charges. So, I consider it unlikely that the family were unaware that Mr Y’s care was not free.
62. We also expect councils to complete financial assessments in a timely manner and tell service users about the cost of care.
63. Mr Y’s stay at care home 1 started in October 2023, but the Council did not send out a financial assessment form to Mr X until mid-December. Mr X did not return this form until early February 2024, but it then took the Council until 22 March, five months after the residential care had started, and four weeks after Mr Y’s death, for it to decide on his contributions.
64. The Council’s delay in sending the financial assessment form and deciding on Mr Y’s contribution is fault. This created a missed opportunity for Mr Y and his family to make an informed decision about his care because they were unaware of the exact cost, which caused uncertainty.
65. I also note that under the CSSG, councils should provide people with copies of their assessments and care and support plans. The latter should contain information about finances.
66. The Council acknowledged that it did not send copies of all the assessments and care and support plans to Mr Y and his family. This is fault which created another missed opportunity for Mr Y and his family to be told the exact cost of his care and added to their uncertainty further.
67. I appreciate Mr X was upset by the receipt of invoices after Mr Y started receiving his care package. But the care was delivered to Mr Y, and the Council was entitled to charge him for it. Mr Y’s contribution to his care would have been the same whether he received residential care or care at home when this first started. So, this unlikely caused Mr Y a financial injustice.

Appointments to discuss finances

68. I found no evidence that the Council either scheduled an appointment with Mr Y’s family to discuss finances nor said it scheduled any such appointment.
69. The Council does not have a duty to schedule formal appointments with service users or families to discuss finances. So, I find no fault in this element of Mr X’s complaint.

Invoices

70. The Council has already acknowledged that it sent incorrect invoices related to Mr Y’s care, including after his death. It also said it continued to send invoices, even when it said it had put these on hold. It has now corrected the incorrect invoices and applied a partial waiver. The Council sending incorrect invoices and continuing to do so when it said it would not, was fault, which caused Mr Y’s family distress and uncertainty. Mr X also says he is still unsure exactly what he owes the Council.

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Action

71. Within four weeks of our final decision, the Council will:
• apologise to Mr X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
• provide Mr X with an updated invoice, showing all of the outstanding charges
72. The Council should provide us with evidence it has complied with the above actions.

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Decision

73. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman