Summary: Mrs A complained that the Council failed to provide proper care for her father Mr X in his home. She says carers commissioned by the Council did not meet his needs or adhere to the care plan and as a result he lived in squalid conditions. The evidence shows there was regular contact with Mr X by the Council but until the last hospital admission, when he was assessed as lacking capacity to decide about his care, he was assessed to be able to make his own decisions about the small amount of care he would accept. However, the were delays in making contact with Mrs A which the Council agrees to remedy.

The complaint

1. Mrs A (the complainant) says the Council did not manage the care of her late father (Mr X) properly for some time while he was living alone at home. She says the carers did not carry out most of the tasks on the care plan, saying that Mr X would not let them do so, and as a result he lived in dirty and unhygienic conditions. She also says the Council delayed in sending her the invoice for his care charges until shortly after his funeral.

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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 evidence provided by Mrs A and the Council as well as relevant law, policy and guidance.
5. Mrs A and the Council had an opportunity to comment on a draft of this decision. I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

6. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
7. 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.
8. 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. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. 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
10. 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. 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.
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 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.
13. 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.
14. The Council produces its own guidance “to support partnership working with adults who present with self-neglect behaviours”.

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What happened

15. Mr X was an elderly man who lived alone in the house he and his late wife had shared for many years: the house was owned by his son. The house is said to have become rundown after Mrs X died but Mr X refused to have any renovations carried out or heating installed. He spent most of his time in one room which could be heated with an electric heater. Mrs A says the rest of the property had damp and there was mould in other rooms.
16. Mr X had a number of hospital admissions due to UTIs (when his capacity would fluctuate) in the autumn of 2020 and subsequently had a care package in place which consisted of 4 visits a day by the winter emergency care team (WECT). A social worker carried out a care act assessment in January 2021. Mr X said the WECT carers were visiting too often and it was an invasion of his privacy. He said he could manage to heat his food himself and did not want them to watch him eating, but he would accept two care visits a day.
17. The social worker noted the carers were prompting Mr X with taking his medication but he was generally refusing any other care. He refused to consider a residential placement. The social worker noted that his children were very worried about him but recognised he did not want to move. Mrs A was providing a lot of support with shopping and laundry but was finding it difficult alongside her job.
18. The social worker recorded that she did not have any reason to doubt Mr X’s capacity regarding his care needs and accommodation. She recorded that the WECT carers said Mr X was managing well at home and the team leader did not have doubts about his capacity: the carers reported Mr X was very independent and would not allow carers to do much for him but “The carers are trying to be firm with (Mr X) and they appear to be building a relationship.” The care plan says however that Mr X “often experiences UTI's which can impact on his ability to make decisions. It is reported that (Mr X) lacks capacity to make certain decisions in his life e.g. re medication. It is possible that (Mr X)'s capacity may fluctuate depending on his health. It is therefore important that consideration is given to his capacity before any complex decisions are made”.
19. Mr X’s care and support plan stipulated two visits a day in line with Mr X’s wishes to provide personal care if allowed, monitor his catheter care, prompt him to take his medication and prompt with food and fluids. A care agency was commissioned to take over from the WECT.
20. The Council’s records show that the finance section sent an income and expenditure form to Mrs A for completion in February 2021 as Mr X said she dealt with his finances. When the form was not returned the Council sent a completed assessment to Mrs A in June showing the figure Mr X was assessed as being able to pay towards the cost of his care. The Council’s notes show it later discovered Mrs A no longer lived at the address it had used: Mrs A points out that as she works for the Council this should not have happened.
21. The Council says “During further enquiries under s42(2) of the Care Act 2014, in May 2021 the Social Worker has documented a conversation with (Mrs A):“(Mrs A) spoke about how she doesn't feel her Dad has capacity around his medication or leg bag. However she feels he understands the risks around the home and also feels he has capacity to manage his finances”.
22. The social worker noted a further conversation with Mrs A in June when there were concerns that Mr X had no money to pay for his laundry: “She (Mrs A) then asked what would happen if (Mr X) didn't have family. I explained we would then assess (his) capacity re managing his finances and refer to the Court of Protection if necessary. (She) then told me that her Dad definitely does have capacity to manage his finances and therefore the carers need to get the money from him direct”.
23. In September 2021 the Council sent out a further income and expenditure form and an invoice to Mrs A at her new address. Two further forms were sent over the next year. In July 2022 Mrs A replied that she did not know Mr X had to pay towards the cost of his care, that he had capacity over his finances and suggested the Council contact her brother about the invoices as she was not well enough to deal with them. The records show that officers made a number of contacts with Mrs A and her brother and in September 2023 finally obtained the bank statements they had requested. Mr X did not make any payments towards his care.
24. The Council’s records show that the care agency commissioned to provide care to Mr X raised concerns about him with the Council in September 2022 as his bed was very dirty and he refused to let them change it. The Community Matron visited him a week later and reported back that there were no obvious signs of a UTI and she had no reason to doubt his capacity.
25. At the end of October 2022, the care agency gave notice as the contract was no longer viable for it. The social worker visited Mr X. She noted that he appeared well and “unchanged” since her last visit a year previously. Mr X was upset to hear the carers were leaving as he said he had just got used to them. The social worker explained that the Council had been unable to source another agency so far and Mr X might have to consider a short-term placement, but he refused. The records show the social worker expressed her concerns that he might end up in hospital if there was no care provided. Mr X replied that if he had to go to hospital he would but he refused a care home placement.
26. A package of care was arranged on an ad hoc basis although the carers reported Mr X would not let them provide much care. Mrs A telephoned the Council in concern about her father’s condition. She said it was a waste of time the carers going for an hour every morning if they did not carry out any tasks and he would be better with 3 welfare checks a day. The agency also reported that Mrs A had telephoned them angry that they did not complete the tasks in the care plan. The agency had explained that the carers were encouraging Mr X every day but could not force him to undertake tasks he refused.
27. The case recording for 16 December records that Mrs A had telephoned the Council requesting an urgent review of care. She said Mr X had the start of dementia, and when she had recently visited his home “there was excrement all over the bathroom toilet and sink. The kitchen area was dirty and the fridge was disgusting, there was mouldy food in there.” She said in her view it was a safeguarding concern.
28. Mr X was admitted to hospital on 23 December with delirium and an infection: he was also struggling to swallow and was assessed as requiring pureed food. The case recording in January 2023 notes, “Since being in hospital (Mr X) has lost loads of weight and has thrush in his mouth. (Mr X) has had a UTI and an infection through his body … (Mr X) has fluctuating capacity and can understand things in the moment but then doesn't follow through with things and doesn't remember things”.
29. On 20 January 2023 the hospital occupational therapist undertook an assessment of Mr X’s capacity to make his own decisions about his care and accommodation and assessed that he lacked capacity. He was discharged from hospital into a nursing placement. Mr X died shortly afterwards.
30. At the end of March 2023 an officer from the finance department emailed Mrs A to enquire about her father’s executor. Mr A replied that her brother had access to Mr X’s bank cards and asked how much money Mr X owed. The finance officer replied that he owed about £10,000 and said “unfortunately, your late father didn't make any client contributions towards the service provided”. The Council’s records show a number of back-and-forth contacts between the Council, Mrs A and her brother regarding the responsibility for the finances. In August Mrs A’s brother said there was no will and asked for the full statement of account to be sent to him.

The complaint

31. Mrs A complained to the Council in August. She asked if Mr A was deemed to have capacity to manage his own finances. She asked why she and her brother had been contacted to fill out the financial forms and also why no-one had contacted them about the accruing debt.
32. A note on the Council’s finance chronology states “25-10-23 – Son called to advise sister is Executor and a copy of a Will has been found.

26-10-23 – Copy bank statement received showing £48k balance. £3.5k to cover funeral costs.”

33. There was a delay before the Council responded to Mrs A’s complaint. In a letter dated January 2024, the community services manager wrote to Mrs A to explain that the social worker had said there was no reason to question Mr X’s capacity although it might fluctuate when he had a UTI. The manager said Mr X agreed to have a financial assessment and asked that Mrs A was contacted in the first instance. She also said that they had written to Mrs A and subsequently to her brother about the finances and “after numerous requests” had received a copy of the bank statement in October 2023.
34. In May 2024 the Council wrote to Mrs A with a final statement of account following its review of Mr X’s finances.
35. Mrs A wrote again to the Council in July 2024: she said, “although the date of your response letter states 8th January, I would like to again advise I did not receive this response letter until 10th July 2024, after I made further contact with the Customer Relations Team”.
36. In response to the Council’s assessment that her father had capacity, Mrs A said, “my father had diagnoses of dementia, cancer, and was partially sighted and profoundly deaf. These conditions impacted on my father’s ability to understand, retain, weigh-up and communicate information regarding his care and support, finances, and home living environment”. She said he would not have understood what a financial assessment was and she and her brother would not have supported the care visits if they had known he was being billed for them: she said they believed her father only had his pension.
37. Mrs A said her father should not have been charged on a full cost basis because of non-disclosure of income. She said he was frequently admitted to hospital with UTIs but this had apparently not triggered a safeguarding alert. She said she had asked for a review of his care but this had not happened. She attached photographic evidence showing the squalid conditions in which he was living.
38. Mrs A complained to us. She said the delays and failings of the Council had a significant impact on her own heath, not least the shock of being told her father owed over £10000 when she did not know he had any savings. She said the Council had failed to safeguard his interests despite his unhygienic and poor living conditions.
39. The Council notes that the social worker raised a safeguarding alert in May 2021 raised due to Mr X’s reluctance to accept support from carers, particularly around concerns that he was not effectively managing his medication. It says it was agreed to encourage rapport building with Mr X, and following this there were repeated reports of Mr X engaging more positively with carers, and accepting regular support with medication, and changing his catheter bag
40. The Council says it believes Mr X’s needs were met “in accordance with his wishes and strengths”. It says “At times when social care staff visited (Mr X) to discuss his care needs, and complete assessments / care planning, there were no concerns about his capacity to understand and consent to this. He was well, and clear of the symptoms of urinary tract infections at these times”. It says he was more inclined to accept help with meal preparation and with taking medication than with personal care.
41. The Council says family members knew that Mr X would not consider moving to other accommodation. It says “His family were aware of these views, and reiterated them on his behalf, during many conversations. Although they would like to see him living someone more modern and comfortable, they knew this was not what he wanted”.
42. Mrs A says the Council should have carried out a capacity assessment and then if her father was deemed to lack capacity to make his own decisions about his care, at least a best interest decision could have been made. She says the bill for his care should not have to be paid as he lacked the capacity to make his own financial decisions and the Council failed to take that into account.

Analysis

43. Although the Council made attempts to contact Mrs A and her brother to resolve the financial assessment, this process was allowed to drift for some time and in fact was not resolved until after Mr X’s death. Mrs A says the Council should have involved her in a financial assessment alongside her father but it appears from the correspondence that Mrs A was unwilling to engage with the Council’s request for financial information about her father and referred it instead to her brother. Indeed at that point – July 2022 – the records show she was of the view that her father had capacity to decide about his finances. In any event, the fact (however belated) is that Mr X had assets over the threshold and was therefore liable to pay the full cost of his care, although I can understand the discovery of that after his death was a shock to Mrs A. I see no reason why the full cost of his care should not be paid.
44. Mrs A says the Council should have undertaken a capacity assessment and then been enabled to make decisions in Mr X’s best interests. Mr X was visited regularly by different officers – by the social worker, by the WECT care staff initially and then by commissioned carers several times a day, by the community matron, as well as by hospital staff when he was admitted for UTIs. Until his last hospital admission, none of those people considered there was doubt about his capacity to make daily decisions about his own care, however ‘unwise’ they may have been and however difficult they were for other people to understand. Although at his last hospital admission he had signs of dementia, the Council points out that there was no diagnosis earlier that he had “illness or impairment of the mind or brain” to trigger a more detailed Mental Capacity Assessment. It is well documented that family members including Mrs A knew very well that Mr X did not want to move from his home.
45. The care assessment notes that Mr X’s fluctuating capacity at the times he was suffering UTI’s should be taken into consideration if he was required to make more complex decisions but in fact the main decisions Mr X was required to take were his daily decisions about his care. The decisions about his finances were being pursed with Mrs A and her brother, albeit slowly.
46. There was a delay in responding to Mrs A’s complaint which was fault by the Council and caused additional distress and uncertainty.

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Action

47. Within one month of my final decision the Council will review the contacts it made with Mr X’s family in respect of the financial assessment and consider how it could have expedited that process: It will also make a payment of £300 to Mrs A in recognition of the distress caused to her by the belated information about the amount of care charges owed.
48. Within one month of my final decision the Council will make a further payment of £200 to Mrs A in recognition of the additional distress caused to her by the delay in responding to her complaint.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

I have completed this investigation on the basis that I find some fault causing injustice. Completion of the recommendations at paragraphs 47 and 48 will remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman